Chapter 4:Government Data Collection and Use

Dragnet Surveillance Short-Circuits Court Review in Drug Cases

Secret tools first justified on national security grounds are also being applied for domestic law enforcement purposes.

The federal government’s large-scale warrantless surveillance of Americans, first brought to light by Edward Snowden, initially appeared to be a story about national security. But the public has now learned that some of the secret tools first justified on national security grounds are also being applied for domestic law enforcement purposes.

For example, the New York Times has reported that the White House Office of National Drug Control Policy, together with the Drug Enforcement Administration (DEA), has secretly paid AT&T to build a massive database of calling records for domestic law enforcement use.[96] AT&T officially controls this database, known as “Hemisphere,” but works closely with the government to give it seamless access, even embedding company employees on law enforcement teams. The program has operated since 2007. The information that AT&T gathers is available not only to the federal government but also to local detectives who are working on drug investigations.[97] Unlike more traditional methods, this system lets law enforcement examine everyone’s activity—not just people who are under suspicion. The leaked document published by the Times explains that this system can “often identify cell phones the target is using that are unknown to law enforcement.”[98]

A document also shows that the White House office involved with the program asked analysts to “never refer to Hemisphere in any official document,” but instead to issue a seemingly independent subpoena for records that had been uncovered by Hemisphere. This controversial, secret tactic—called “parallel construction”—allows law enforcement to offer such records as evidence in court, without alerting the court or the defendant to its reliance on this warrantless program.[99] The same tactic is apparently used by the DEA’s “Special Operations Division” (SOD), which maintains a partnership with the NSA to receive tips gathered via NSA surveillance activities, outside the framework of domestic law enforcement.[100] Guidance obtained by Reuters “specifically directs agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use ‘normal investigative techniques to recreate the information provided by SOD.’”[101]

Nancy Gertner, a former federal judge now on the faculty of Harvard Law School, describes such tactics as “phonying up the course of the investigation.”[102] She warns that “[w]hen the DEA is concealing what the source of the information is and pretending it came from one place rather than another, there can be no judicial review” of the government’s real investigative tactics.